Ask an expert: Solicitor Joanna Robson

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Posted on: 30 July 2012

Ask an expert: Solicitor Joanna Robson

Our Employment Law Solicitor Joanna, is here to offer advice on maternity related employment and any legal queries you have.

When I return to work following my maternity leave, my employer of three years said they would allow me to go part-time, but only within a temporary six-month position. Can they do this, and what will happen if the position isn’t continuous?

You have continuous service exceeding 26 weeks, therefore you are entitled to request flexible working following your period of maternity leave. Any such request must be put in writing and your employer is obliged to objectively consider your request.Your employer is then obliged to confirm their decision in writing to you and if your request is refused, they must give you objective reasons for this. If you do not agree with their reasons, you may appeal. In the event that your employer cannot facilitate your existing role on a part-time basis, and their decision has been reached fairly, then they are not obliged to offer you an alternative permanent position. It would be a matter for you to decide if you wanted to accept the temporary role working the part-time hours you have requested.

My employer has a policy whereby if you are off sick for more than five times in any one calendar year, they can instigate disciplinary action. I have been off sick five times this year, but four of those occasions have been pregnancy-related. Will I still be reprimanded under the policy? As a pregnant employee, you have a right not to be treated less favourably and not to suffer detriment when compared to other members of staff. Any pregnancy-related illness should be disregarded for disciplinary purposes. Failure on the part of your employer to do this may be deemed discriminatory. In the event that your employer imposes disciplinary sanctions on you, you should appeal against the decision on the said grounds. You may have grounds for a claim of unfair dismissal if you have been dismissed for pregnancy-related sickness.

I am a working mum with a three-year-old autistic daughter and am finding it hard to juggle childcare. Am I entitled to ask for more flexible working hours? You are entitled, as a working mum, to make one statutory request for flexible working in any 12 month period. Your employer is obliged to consider your request and may only refuse if they have business and objective reasons, which must be put in writing to you. Given that your daughter is autistic, you should also incorporate the carer element into your requirements, and your employer must take this aspect into account.If they unreasonably refuse your request, you may have grounds for alleging discrimination under the Disability Discrimination Act 1995. Given the complexity of the crossover of legislation, you should seek advice if you are requesting a variation of your working hours to enable you to care for your daughter. Babylaw would be happy to help in this regard.

I am 12 weeks pregnant and have an exciting job interview next week. Should I tell my prospective employer of my pregnancy at the interview, or not? I’m worried in case I jeopardise my chances of getting the job. It’s understandable to be worried about disclosing such information. However, if you’re the best candidate for the job, the employer shouldn’t be deterred by your pregnancy. It’s unlawful for an employer to pose any questions on actual or planned pregnancy during an interview process.Current legislation states that you must inform an employer in writing of your pregnancy no later than the 15th week prior to your expected week of childbirth, this is usually your 25th week. Before then, you’re under no obligation, although your expanding tummy may speak for you!If you work in risky surroundings, it’s advisable to tell your employer at the earliest opportunity, so that you and your baby are protected from a health and safety perspective. You should also remember that commencing new employment during the course of an existing pregnancy will not entitle you to payment of any statutory maternity pay as you will not satisfy necessary continuous service requirement.

When I return to work I don’t want to stay late every night as before, but I’m worried my boss will think badly of me. Should I email her about my concerns in advance, or raise them with HR on my return instead? Your employer cannot impose a requirement on you to work beyond 48 hours per week and if you have opted out in the past, you can simply give your employer seven days’ notice to cancel your opt out in this regard. You are also able to place reliance upon the contracted hours which are set out in your contract of employment and you should not be reprimanded or disregarded because of your inability to work outside such hours. You may wish to have an informal chat with your manager just to make her aware that you will be leaving the office at the finish time specified in your contract of employment.

I’ll be returning to work soon, after a year on maternity leave. Rumours have been flying round about restructuring, with people taking on additional responsibilities. I’m worried I’ll have to go back to an unfamiliar job or new department, but haven’t officially been told anything about what‘s happening.Even though you are on maternity leave, your employer is obliged to keep you informed of any significant changes being made either to your actual role or to factors such as restructuring that may affect your role in some way. Your employer is not allowed to alter or significantly change your job description in the absence of consultation with you and/or your express consent. However, as you are taking 12 months’ maternity leave, the regulations also state that you are entitled to return either to the same job or to a similar one, on no less favourable terms than you had in your original role. This means that your employer could lawfully place you in a similar rather than exactly the same role you were carrying out prior to starting your maternity leave.

I’d love to go part-time to spend more time with my children. Are there any guidelines about this? As you are caring for children under 17, you are legally entitled to submit a request to work flexible working hours, provided you have been continuously employed by your employer for a period of 26 weeks. The request must be in writing and set out the hours you would like to work. It also helps your employer if you can show why you believe your flexible working arrangement will not affect the functionality of your role. Your employer is obliged to invite you to a meeting to discuss this within 28 days of receipt of the written request. In this meeting you will be given an opportunity to put across how beneficial flexible working will be to you and your employer’s business. Your employer will then write to you with their decision. They may refuse a request if they can show there are objective business reasons for doing so. However, you will be offered right of appeal in the event that your request is refused.

I’d like to do some paid freelance work while I’m on maternity leave. Do I need to tell my employer or let the tax office know? You will need to check your terms and conditions of employment to ascertain whether you need your employer’s consent to work elsewhere. In addition, you are not allowed to be paid remuneration while being in receipt of SMP, except for agreed monies paid to you pursuant to your right to work ‘Keeping in Touch Days’. You may need to let your local tax office know of your intention to carry out paid work while employed through your first employer and for SMP purposes. They will then be able to ensure that you are working under the correct tax codes and it avoids any unexpected demands for repayment of SMP and/or tax at a later date.

When I return to work following my maternity leave, my employer of three years said they would allow me to go part-time, but only within a temporary six-month position. Can they do this, and what will happen if the position isn’t continuous? You have continuous service exceeding 26 weeks, therefore you are entitled to request flexible working following your period of maternity leave. Any such request must be put in writing and your employer is obliged to objectively consider your request.Your employer is then obliged to confirm their decision in writing to you and if your request is refused, they must give you objective reasons for this. If you do not agree with their reasons, you may appeal. In the event that your employer cannot facilitate your existing role on a part-time basis, and their decision has been reached fairly, then they are not obliged to offer you an alternative permanent position. It would be a matter for you to decide if you wanted to accept the temporary role working the part-time hours you have requested.

I have been working for my employer for six years and a recent appraisal recommended me for promotion. I’ve since become pregnant and notified my employer, who was not exactly pleased for me. A suitable role which would have been a promotion has since come up and I have not been considered. The role has been given to someone else who has less experience than me. I have raised this informally with my employer, but they don’t agree with me. I really feel I can no longer work for them. What can I do? You should raise a written grievance with your employer, providing them with a copy of your appraisal and setting out your concerns that you feel you may have been sidelined for a promotion as a consequence of the recent announcement of your pregnancy. This may amount to sex discrimination, provided you can prove you have been treated less favourably. You have indeed suffered a detriment, namely not being selected for promotion. Such acts may warrant a ‘repudiatory breach’ of your trust and confidence in your employer, which may lead to a claim for constructive unfair dismissal. However, you must act without delay in the event that you feel that resignation is your only option.

My employer has a policy whereby if you are off sick for more than five times in any one calendar year, they can instigate disciplinary action. I have been off sick five times this year, but four of those occasions have been pregnancy-related. Will I still be reprimanded under the policy? As a pregnant employee, you have a right not to be treated less favourably and not to suffer detriment when compared to other members of staff. Any pregnancy-related illness should be disregarded for disciplinary purposes. Failure on the part of your employer to do this may be deemed discriminatory. In the event that your employer imposes disciplinary sanctions on you, you should appeal against the decision on the said grounds. You may have grounds for a claim of unfair dismissal if you have been dismissed for pregnancy-related sickness.

Is it true that new legislation requires a minimum length of service of two years before you can make a claim for unfair dismissal, and that employment tribunals may also introduce fees for making a claim? If you started new employment on or after 6th April 2012, the qualifying period of service required for an employee to present a claim for unfair dismissal will increase from one to two years. However, exceptions shall continue to apply. For example, where an employee is dismissed by reason of her pregnancy or maternity leave status, there is no requirement for any qualifying period of length of service. There has been some discussions regarding fees, but to date nothing has been confirmed.

I’ve been employed for four years and have just told my employer I’m 11 weeks pregnant. Now I’ve been told I’m to be made redundant. No one else is affected. What are my rights? A genuine redundancy arises only where there has been or is going to be a cessation of business or a reduction of work. Unless you have a unique stand-alone role, it is telling that you are the only person placed at risk. In most redundancy situations, a pool of comparative and interchangeable employees is selected and ‘scored’. If you believe this redundancy is unfair and/or not genuine, you have a right of appeal. If the appeal upholds the original decision, this may give rise to a claim for unfair dismissal and/or sex discrimination if you believe the primary reason for your dismissal was pregnancy-related.

It has recently come to my attention that all of my colleagues received a pay rise. I was not informed because I’m on maternity leave. What are my rights and will a pay rise affect my entitlement to SMP? Your employer is under a duty to keep you informed of staffing and salary developments while you are on maternity leave. You are also entitled to the same treatment as your colleagues and therefore the pay rise should also apply to you. You should ask your employer to recalculate your average earnings so as to incorporate the pay rise. This will adjust the SMP entitlement paid to you so that you benefit from the pay rise.

Can I still get maternity pay from my employer if I have no intention of returning to work after my maternity leave? It is advisable to read through your terms and conditions of employment as in some cases of occupational maternity pay, employees may be obliged to repay monies paid to them in excess of SMP in the event of not returning to work. However, there is no requirement to pay back the SMP element or any SMP paid during your maternity leave period. It is also advisable to check your employment contract regarding the serving of your notice on your employer as you may wish to consider doing this in good time prior to your maternity leave period expiring so as to ensure there is no obligation to return to work to work out your notice period.